Citation Nr: 21027521 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 19-00 044 DATE: May 6, 2021 ORDER A rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is denied. FINDING OF FACT The Veteran's PTSD has consistently manifested in frequent depression, nightmares every few weeks, avoidance, isolating behavior, hearing voices, disturbances in motivation and mood, and difficulty in establishing and maintaining effective relationships, resulting in reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1976 to November 1979. This matter is originally on appeal from an August 2017 rating decision. Thereafter, the Board denied the claim in an August 2019 rating decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (CAVC) and, in April 2020, the parties agreed to a Joint Motion for Remand (JMR), which was granted by a CAVC Court Order dated April 2020, vacating the Board's prior August 2019 denial and remanding the case consistent with the terms of the JMR. The matter than returned to the Board in January 2021 at which time it was remanded for further evidentiary development. Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran was granted service connection for a psychiatric disability at 50 percent, effective July 22, 1999, under 38 C.F.R. § 4.130, DC 9434, the General Rating Formula for Mental Disorders. The diagnostic code was later changed to DC 9411, also rated according to the General Rating Formula. The Veteran submitted a claim for increase on April 15, 2017. Thus, the Board will consider the severity of the Veteran's PTSD from April 15, 2017, as well as whether there was a factually ascertainable increase in severity within the year preceding the increased rating claim. See 38 C.F.R. § 3.400(o)(2). Under 38 C.F.R. § 4.130, a 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is assignable where there is total occupational and social impairment, due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). Thus, the Board will consider whether "the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code," and, if so, the "equivalent rating will be assigned." Id. In Vazquez-Claudio v. Shinseki, the Federal Circuit held that a Veteran may only qualify for a given disability rating "by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." 713 F.3d 112, 117 (Fed. Cir. 2013) ("Reading [38 C.F.R. §§ 4.126 and 4.130] together, it is evident that the 'frequency, severity, and duration' of a Veteran's symptoms must play an important role in determining his disability level."). Turning to the evidence, in an August 2016 VA treatment record, Veteran reported that the "voices" were getting worse. A mental evaluation was within normal limits, the Veteran was coherent, conversant, agitated, anxious, and had somewhat rambling, pressured speech. In December 2016, he noted that he heard voices sometimes. He also described staying indoors on the Fourth of July. He denied suicidal and homicidal ideation. The Veteran presented with a blunted, constricted affect and dysphoric mood. He was casually dressed and well-groomed. He stated that he and his second wife divorced several years previously but they still lived together. He had two children from his first marriage. The Veteran reported nightmares but denied other sleep problems. He endorsed some memory and concentration problems. He described remote history prison time, a suicide attempt, and a hospitalization but no current similar symptoms. The Veteran reported that he had a few close friends. His activities included watching television, gardening, fishing, and attending church. Upon observation, he was oriented and alert on all spheres; he appeared to have the ability to make informed health care decisions; his speech was spontaneous with regular rate, rhythm, and volume; his insight and judgment were fair to intact; he was appropriate in behavior, polite, and cooperative; thought processes were logical and goal-directed; he appeared to have good insight into to his issues; and his support system appeared to be intact and supportive. At a December 2016 VA mental health appointment, the Veteran was adequately groomed; cooperative; calm; had good eye contact; was alert and oriented on all spheres; had a dysphoric/sad mood; had constricted affect; had appropriate, logical, and goal-directed speech; had grossly intact memory functions; reported normal sleep and appetite; displayed good insight and judgment; had no suicidal or homicidal ideation; and denied hallucinations in the past 90 days. The Veteran endorsed hearing voices when he was in a crowd and nightmares with talking in his sleep. The treating clinician determined that his current symptom severity was moderate. The Veteran was referred for counseling. In April 2017, the Veteran was alert and oriented on all spheres. His speech was spontaneous with regular rate, rhythm, and volume. Insight and judgment were fair to intact and thought processes were linear and relevant. The Veteran presented with slightly irritable mood and congruent affect. His thinking seemed organized and relevant. There was no evidence of psychosis or delusional content expressed. He reported hearing voices from his service days and nightmares. He described his relationships as good and noted that he had built his garden and went to church. He had no suicidal or homicidal ideation or intent, no auditory or visual hallucinations, and no feelings of hopelessness. The Veteran underwent a VA examination in August 2017. He reported that he reunited with his second wife and that they had been together for the past 15 years. He had no other changes to his relationships. He noted he was being followed by a psychiatrist and a primary care physician but was not taking any medications. He had no hospitalizations or suicide attempts since 1987. His current symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Upon observation, his appearance and behavior were appropriate; language and speech were clear and coherent; thought processes were logical, linear, goal-oriented, and organized; mood was labile with congruent mood; cognitive functioning was normal; the Veteran was oriented on all spheres; and he was cooperative throughout but appeared increasingly distressed when speaking about his experiences. The Veteran was diagnosed with PTSD with symptoms of anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships and unspecified depressive disorder with symptoms of depressed mood and disturbances of motivation and mood. The examiner determined that the Veteran's condition resulted in occupational and social impairment with reduced reliability and productivity. In a November 2017 VA treatment record, the Veteran stated that he heard gunshots and was afraid to go outside and being around people. He described being depressed most of the time, having low energy and motivation, and having nightmares every few weeks. He also endorsed increased startle response and avoidance. Upon observation, he was alert and oriented on all spheres; intellectual functioning was estimated to be adequate; speech was normal in rate, volume, and productivity; and thoughts were logical and goal-directed without evidence of thought disorder or delusion. The Veteran denied suicidal or homicidal ideation or intent, auditory or visual hallucinations, or feelings of hopelessness. In February 2018, the Veteran reported ongoing nightmares with yelling in his sleep. The clinician determined that he had classic avoidance and isolation to mitigate hyperarousal symptoms of PTSD. The Veteran stated that he had good and bad days, overall low energy and motivation, and difficulty making decisions. Affect was mildly anxious and fidgety overall. He denied suicidal or homicidal ideation and intent and feelings of hopelessness. At a May 2018 Decision Review Officer (DRO) hearing, the Veteran reported anger problems and being so depressed sometimes that he stayed in bed two or three days. He stated he had very few friends and self-isolated. He noted that he moved away from noise because he could hear gunshots. In December 2019, January 2020, March 2020, April 2020, May 2020, January 2021, and February 2021 private treatment records, it was noted that the Veteran had no complaints of insomnia, depression, or anxiety and presented with a positive mood and affect. A rating in excess of 50 percent for PTSD is denied. Based on the foregoing, the Board finds that a rating in excess of 50 percent is not warranted at any time during the appeal period. The evidence does not demonstrate that the frequency, severity, and duration of the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas. There is no indication that his disability manifested in suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; and difficulty in adapting to stressful circumstances, or symptoms of similar type and severity. Although he is depressed "most of the time," it does not appear as though the duration of his depression affects his ability to function independently, appropriately and effectively. He stated at the DRO hearing that he sometimes was depressed and could not get out of bed for several days but he has never endorsed such severity of symptomology to his treating clinicians. Treating clinicians have deemed the severity of his condition to be moderate. The VA examiner determined that his condition resulted in reduced reliability and productivity and not deficiencies in most areas. The Veteran has consistently endorsed frequent depression, nightmares every few weeks, avoidance, isolating behavior, hearing voices, disturbances in motivation and mood, and difficulty in establishing and maintaining effective relationships. These symptoms however have not resulted in deficiencies in work, school, family relations, judgment, or thinking. The Veteran is in a functioning long-term relationship with his second wife and has a few close friends, children, and grandchildren. Although he has stated that he frequently isolates himself, his ability to still maintain those relationships reflects a moderate effect of such behavior and he himself described his relationships as good. He engages in hobbies and attends church. His symptoms are not so severe as to require frequent therapy, medication management, or hospitalization. Additionally, there is no evidence of cognitive impairment upon repeated mental status evaluation. The Board finds that the frequency, severity, and duration of the Veteran's symptoms best approximate occupational and social impairment with reduced reliability and productivity. Although there is clearly functional impairment caused by the Veteran's PTSD, the Board finds that the evidence overwhelmingly does not support a psychiatric disability with deficiencies in most areas. Accordingly, a rating in excess of 50 percent for PTSD is not warranted. The Board notes that due consideration of the April 2020 JMR was made whereas the parties indicated the prior denial did not fully discuss all of the Veteran's symptoms, "nor did it adequately consider the severity, frequency, and duration" of the Veteran's symptoms. At the same time, no specific example of an overlooked piece of evidence or symptomatology was noted in the JMR. In the interest in complying with the April 2020 JMR, the Board makes clear that the entirety of the Veteran's record was reviewed de novo and the Board has outlined above the legal determination made with respect to the symptomatology found in the record and the severity, frequency, and duration of such symptomatology. However, the Board's obligation here is not unbounded there is no requirement that the Board comment on every piece of evidence contained in the record. See, e.g., Newhouse v. Nicholson, 497 F.3d 1298, 1302 (Fed. Cir. 2007). The Board has, to the extent practicable, explained above why a rating in excess of 50 percent for PTSD is not warranted in this case and, therefore, finds sufficient compliance with the April 2020 JMR. Further, the Board also finds that the Veteran's disability is fully capable of evaluation under the rating schedule. There is no applicable provision that would warrant a higher rating in this case. Thus, the appeal must be denied. SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rachel E. Jensen, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.